LEGISLATIVE COUNSEL'S DIGEST

Existing law requires the attending physician of a resident in a skilled nursing facility or intermediate care facility who prescribes or orders a medical intervention of a resident that requires the informed consent of a patient who lacks the capacity to provide that consent, as specified, to inform the skilled nursing facility or intermediate care facility. Existing law requires the facility to conduct an interdisciplinary team review of the prescribed medical intervention prior to the administration of the medical intervention, subject to specified proceedings. Existing law authorizes a medical intervention prior to the facility convening an interdisciplinary team review in the case of an emergency, under specified circumstances. Existing law imposes civil penalties for a violation of these provisions.

This bill would, before implementing a
medical intervention that requires informed consent for a resident who lacks capacity to make health care decisions and there is no person with legal authority able and willing to make those decisions, require the physician, skilled nursing facility, or intermediate care facility, to promptly notify the resident, orally and in writing, that it has been determined that the resident lacks capacity, and other information, as specified.

Digest Key

Vote:
MAJORITY
Appropriation:
NO
Fiscal Committee:
YES
Local Program:
NO

Bill Text

The people of the State of California do enact as follows:

SECTION 1.

Section 1418.8 of the Health and Safety Code is amended to read:

1418.8.

(a) If the attending physician of a resident in a skilled nursing facility or intermediate care facility prescribes or orders a medical intervention that requires that informed consent be obtained prior to administration of the medical intervention, but is unable to obtain informed consent because the physician determines that the resident lacks capacity to make decisions concerning his or her health care and that there is no person with legal authority able and willing to make those decisions on behalf of the resident, the physician shall inform the skilled nursing facility or intermediate care facility.

(b) For purposes of subdivision (a), a resident
lacks capacity to make a decision regarding his or her health care if the resident is unable to understand the nature and consequences of the proposed medical intervention, including its risks and benefits, or is unable to express a preference regarding the intervention. To make the determination regarding capacity, the physician shall interview the resident, review the resident’s medical records, and consult with skilled nursing facility or intermediate care facility staff, as appropriate, and family members and friends of the resident, if any have been identified.

(c) For purposes of subdivision (a), a person with legal authority to make medical treatment decisions on behalf of a resident is a person designated
pursuant to Division 4.7 of the Probate Code, a guardian, a conservator, or next of kin. To determine the existence of a person with legal authority, the physician shall interview the resident, review the medical records of the resident, and consult with skilled nursing facility or intermediate care facility staff, as appropriate, and with family members and friends of the resident, if any have been identified.

(d) The attending physician and the skilled nursing facility or intermediate care facility may initiate a medical intervention that requires informed consent pursuant to subdivision (e) in accordance with acceptable standards of practice. Before implementing a health care decision about a medical intervention that requires informed consent, if the resident lacks capacity to make health care decisions and there is
no person with legal authority able and willing to make those decisions on behalf of the resident, the physician, skilled nursing facility, or intermediate care facility shall promptly communicate to the resident, orally and in writing, the following information:

(1) The resident’s attending physician has determined that the resident lacks capacity to make health care decisions.

(2) The facility has been unable to locate a person with legal authority to make medical treatment decisions on behalf of the resident pursuant to Division 4.7 of the Probate Code, a guardian, conservator, or next of kin who is able and willing to make health care decisions on behalf of the resident.

(3) The medical intervention recommended or
prescribed that requires informed consent and the identity of the person recommending or prescribing the medical intervention.

(4) The interdisciplinary team will review or has reviewed the physician’s determinations, and will continue to oversee any additional recommended or prescribed interventions unless or until a person with legal authority able and willing to make health care decisions on behalf of the resident is identified, or the attending physician or a court determines that the resident has regained the capacity to make health care decisions.

(5) The right of the resident to challenge the determinations made pursuant to this section, in a judicial proceeding.

(e) If a resident of a skilled nursing facility or intermediate care facility has been prescribed a medical intervention by a physician that requires informed consent and the physician has determined that the resident lacks capacity to make health care decisions and there is no person with legal authority able and willing to make those decisions on behalf of the resident, the facility shall, except as provided in subdivision (h), conduct an interdisciplinary team review of the prescribed medical intervention prior to the administration of the medical intervention. The interdisciplinary team shall oversee the care of the resident utilizing a team approach to assessment and care planning, and shall include the resident’s attending physician, a registered professional nurse with responsibility for the resident, other appropriate staff in
disciplines as determined by the resident’s needs, and, if practicable, a resident representative, in accordance with applicable federal and state requirements. The review shall include all of the following:

(1) A review of the physician’s assessment of the resident’s condition.

(2) The reason for the proposed use of the medical intervention.

(3) A discussion of the desires of the resident, if known. To determine the desires of the resident, the interdisciplinary team shall interview the resident, review the resident’s medical records, and consult with family members or friends, if any have been identified.

(4) The type of medical intervention to be used in the
resident’s care, including its probable frequency and duration.

(5) The probable impact on the resident’s condition, with and without the use of the medical intervention.

(6) Reasonable alternative medical interventions considered or utilized and reasons for their discontinuance or inappropriateness.

(f) A resident representative may include a family member or friend of the resident who is unable to take full responsibility for the health care decisions of the resident, but who has agreed to serve on the interdisciplinary team, or other person authorized by state or federal law.

(g) The interdisciplinary team shall periodically evaluate the use of the
prescribed medical intervention at least quarterly or upon a significant change in the resident’s medical condition.

(h) In case of an emergency, after obtaining a physician’s order under subdivision (a), as necessary, a skilled nursing facility or intermediate care facility may administer a medical intervention that requires informed consent prior to the facility convening an interdisciplinary team review. If the emergency results in the application of physical or chemical restraints, the interdisciplinary team shall meet within one week of the emergency for an evaluation of the medical intervention.

(i) Physicians, skilled nursing facilities, and intermediate care facilities shall not be required to obtain a court order pursuant to Section 3201 of the Probate Code prior to
administering a medical intervention that requires informed consent if the requirements of this section are met.

(j) Nothing in this section shall in any way affect the right of a resident of a skilled nursing facility or intermediate care facility for whom medical intervention has been prescribed, ordered, or administered pursuant to this section to seek appropriate judicial relief to review the decision to provide the medical intervention.

(k) No physician or other health care provider, whose action under this section is in accordance with reasonable medical standards, is subject to administrative sanction if the physician or health care provider believes in good faith that the action is consistent with this section and the desires of the resident, or if unknown, the best
interests of the resident.

(l) The determinations required to be made pursuant to subdivisions (a), (e), and (g), and the basis for those determinations shall be documented in the resident’s medical record and shall be made available to the resident’s representative for review.